Section 65 of the Labour Relations Act 66 of 1995 [“LRA”] imposes certain substantive limitations on the right to strike.   Section 64 of the LRA sets out the procedures to be followed prior to exercising any right to strike.   One of the requirements is that the issue in dispute must have been referred to the CCMA (if there is no Bargaining Council having jurisdiction) and the CCMA must have issued a certificate stating that the dispute remains unresolved.

Does this mean that when such a certificate is issued the substantive limitations in section 65 of the LRA fall away?

In effect this is what Rampai AJ decided on 28 May 2007 in Vodacom (Pty) Ltd v CWU – unreported case J 507/07 (LC) when he discharged an interim interdict granted in favour of the company to prevent a strike over organisational rights.

However, to his credit Rampai AJ did grant leave to appeal to the Labour Appeal Court [“LAC”] against his order – see Vodacom (Pty) Ltd v CWU [2008] JOL 21311 (LC).   Just as well because the LAC duly overturned his order on 2 June 2009 – see Vodacom (Pty) LTd v CWU Unreported case JA 16/08 (LAC).

Davis JA in the LAC is reported to have stated in para [8]:

“In other words the judgment (of Rampai AJ) adopted the approach that, until such time as a decision by an administrator is set aside, even if it is illegal, it remains in force until such time as a court declares it to be so illegal.”

Davis JA went on to state in para [10]:

“Section 65 sets out limitations on the right to strike or recourse to lockout which have to be read together with section 64.    In short no matter that there has been compliance with section 64, the LRA limits a right to strike, such that if the strike reaches one of the limitations in terms of section 65, it is an unlawful strike, notwithstanding compliance with procedures under section 64.   To express it differently, the certificate cannot trump the limitations of section 65.       What can trump such a limitation is a constitutional challenge, in effect to contend that the limitations contained in the LRA breach the right to strike, as enshrined in the constitution, and constitutes an unjustifiable limitation on that constitutional right.   That of course was never the dispute in this case, nor was the point ever argued.  Therefore it is not before us.   What is before us is the clear provision of section 65(1) which provides that no person may take part in a strike or lockout or in any conduct in contemplation of or furtherance of a strike or lockout if (a) that person is bound by a collective agreement that prohibits a strike or lockout in respect of the issue in dispute”.

It was common cause that the parties had signed a collective agreement relating to the issue in dispute and as provided by LRA s65(1)(a) there could not be a protected strike in respect of that issue.

The LAC judgment has only come to light as a result of an article in Business Day on 8 March 2010 written by two attorneys who kindly made it available to enable it to be posted on the web site.   How many other important LAC judgments are still generally unavailable to practitioners?

The article by Brian Patterson & Jacqui Driver, both of ENS, appeared in the “Business Law & Tax Review” supplement to BusinessDay and was entitled “‘Passport to strike’ is denied: A certificate of outcome cannot trump the limitations contained in section 65”.

The other cases discussed in that article Fidelity Guards Holdings (Pty) Ltd v Epstein NO [2000] 12 BLLR 1389 (LAC) per Zondo JP and Strautmann v Silver Meadows Trading 99 CC (Pty) Ltd [2009] 10 BLLR 1007 (LC) per Van Niekerk J are both available to be downloaded, thanks to SAFLII.